(a) Purpose of a Pretrial conferences; objectivesConference. TheIn any action, the court in its discretion may, and upon the occurrence ofwhen any of the triggering events specified in subdivisionRule 16 (b),occur must, directorder the attorneys for the parties and any unrepresentedself-represented parties to appear before it in person, telephonically, or by other electronic means, for a conferenceone or more pretrial conferences in advance of trial for such purposes as:

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation;

(5) facilitating the settlement of the case; and

(6) discussing the desirability of using an alternative dispute resolution process.

(b) Scheduling and planningConference; Triggering Events.

(1) Triggering Events. The court must conduct a conference and enter ana scheduling order to schedule and manage the case under the following circumstancesif:

(1)(A)if more than six months have passed since filing of the summons and complaint or answer without final disposition of the case or filing of a dispositive motion;

(2)(B)if a Rule 40(e) notice has been issued and any response to the notice contained a request that the case be left open; or

(2)(C)if any party makes a written request for a scheduling and planning conference.

(c)(2) When Conference Held. The scheduling and planning conference must be held within 60 days of the triggering event.

(d)(c)SubjectsAttendance and Matters for Consideration at aPretrial ConferencesScheduling Conference.

(1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone or other means to consider possible settlement.

(2) Matters for Consideration. At any scheduling conference,under this rule consideration may be given, and the court may consider and take appropriate action, with respect toon the following matters:

(1)(A)the formulation and simplification offormulating and simplifying the issues, including the elimination of frivolousand eliminating claims or defenses;

(2)(B)the necessity or desirability and the time for joinder ofjoining other parties and of amendments toamending the pleadings, if necessary and desirable;

(3)(C)the possibility of obtaining admissions of fact and stipulations about facts and documents which willto avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the courtand ruling in advance on the admissibility of evidence;

(4)(D)the avoidance ofavoiding unnecessary proof and of cumulative evidence, and determining limitations or restrictions on the use of testimony under RuleN.D.R.Ev. 702 of the North Dakota Rules of Evidence;

(5)(E)determining the appropriateness and timing of motions for summary adjudication under Rule 56 and any other motions;

(6)(F)the controlcontrolling and scheduling of discovery;

(7)(G)anyresolving issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;

(8)(H)the appropriateness and timing of disclosure ofscheduling the identification of witnesses and documents, the need and schedule forscheduling the filing and exchangingexchange of any pretrial briefs, and the date orsetting dates for further conferences and for trial;

(9)(I)the advisability of a preliminary reference ofreferring issues to a master for findings to be used as evidence when the trial is to be by jury;

(10)(J) settlement and the use ofsettling the case and using special procedures to assist in resolving the dispute;

(11)(K)determining the form and substancecontent of the pretrial order;

(14)(N)an order forordering a separate trial under Rule 42(b) with respect toof a claim, counterclaim, cross-claimcrossclaim, or third-party claim, or with respect to any particular issue in the case;

(15)(O)an order directing a party or parties to presentordering the presentation of evidence early in the trial with respect toon a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);

(16)(P)an order establishing a reasonable limit on the time allowed for presentingto present evidence;

(17)(Q)the allocation ofallocating peremptory challenges; and

(18)(R)such other matters as may facilitatefacilitating in other ways the just, speedy, and inexpensive disposition of the action.

At least one of the attorneys for each party participating in any conference before trial must have authority to enter stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.

(e)(d)ModificationScheduling Orders. A scheduling order issued under this rule may be modified by leave of court or as permitted by Rule 29.After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it.

(f)(e) Final Pretrial Conference and Orders. AnyThe court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the time of trial as is reasonable under the circumstances, and must be attended by at least one attorney who will conduct the trial for each party and by any self-represented party. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference must be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.

(g) Pretrial orders.

After any conference held under this rule, an order must be entered reciting the action taken. This order controls the subsequent course of the action unless modified by a subsequent order. The court may modify the order followingissued after a final pretrial conference may be modified only to prevent manifest injustice.

(h) Sanctions.

(1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37, If (i) if a party or party'sits attorney:

(A) fails to obey a pretrial order, (ii) no appearance is made on behalf of a partyappear at a scheduling or other pretrial conference,;

(B)a party or party's attorney is substantially unprepared to participate, or does not participate in good faith, in the conference,; or

(C)(iv) a party or party's attorney fails to participate in good faith, the court, upon motion of a party or its own motion, may make such orders with regard thereto as are just, and among others any of the orders provided in Rules 37(b)(2)(B), (C), (D)obey a scheduling or other pretrial order.

(2) Imposing Fees and Costs.In lieuInstead of or in addition to any other sanction, the judge shall requiremust order the party,or theits attorney,representing the party or both to pay the reasonable expenseexpenses, including attorney fees, incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

EXPLANATORY NOTE

Rule 16 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2000; August 1, 2004; March 1, 2008;____________.

Rule 16 was amended, effective March 1, 2000, to add a new subdivision (a)(6) relating to alternative dispute resolution. Under N.D.R.Ct. 8.8, all parties in civil cases are required to discuss early alternative dispute resolution and must file a statement with the district court regarding participation in ADR.

Rule 16 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Subdivision (a) was amended and new subdivisions (b), (c) and (e) were added, effective August 1, 2004, to incorporate a mechanism to trigger scheduling and planning conferences when certain events occur in an action.

Subdivision (d) was amended, effective March 1, 2008, to add issues related to electronically stored information to the list of possible subjects for discussion at a pretrial conference.